Editor’s
note: Thomas Terraz is a third year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.

1. Introduction

The
surge of e-sports has stimulated a lively discussion on the essential
characteristics of sport and whether e-sports, in general, can be considered a
sport. However, one should not overlook the fact that e-sports encompass a
broad range of video games that fundamentally differ from one another. Thus, as
one commentator recently underlined, “the position of video games and the
e-sport competitions based on them should be analysed on a case-by-case basis.”[1]
In this spirit, this blog aims to provide a concise analysis of one of these
e-sports, League of Legends (LoL), and one of its main competitions, the League
of Legends European Championship (LEC), to assess whether it could be
considered a sport in the sense of EU law. The LEC offers a fascinating
opportunity to examine this issue especially since the previous European League
of Legends Championship Series (EU LCS) was rebranded and restructured this
year into the LEC. More...

Editor's note: Daniela Heerdt is a PhD
candidate at Tilburg Law School in the Netherlands. Her PhD research deals with
the establishment of responsibility and accountability for adverse human rights
impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic
Games.

About three years ago, the Fédération Internationale de Football
Association (FIFA) adopted a new version of its Statutes,
including a statutory commitment to respect internationally recognized human
rights. Since then, FIFA undertook a human rights journey that has been praised
by various stakeholders in the sports and human rights field. In early June, the
FIFA Congress is scheduled to take a decision that could potentially undo all
positive efforts taken thus far.

FIFA already decided in January 2017 to increase the
number of teams participating in the 2026 World Cup from 32 to 48. Shortly
after, discussions began on the possibility to also expand the number of teams for
the 2022 World Cup hosted in Qatar. Subsequently, FIFA conducted a feasibility
study, which revealed that the expansion would be feasible but require a
number of matches to be hosted in neighbouring countries, explicitly mentioning
Bahrain, Kuwait, Oman, Saudi Arabia and the United Arab Emirates (UAE). One
does not have to be a human rights expert to be highly alarmed by this list of
potential co-hosting countries. Nevertheless, the FIFA Council approved of the
possibility to expand in March 2019, paving the way for the FIFA Congress to
take a decision on the matter. Obviously, the advancement of the expansion
decision raises serious doubts over the sincerity of FIFA’s reforms and human
rights commitments. More...

Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.

Since the spectre of the EU General Data
Protection Regulation (‘GDPR’) has loomed over the sports sector,[1]
a new wind seems to be blowing on anti-doping, with a palpable growing interest
for stakes involved in data processing. Nothing that would quite qualify as a
wind of change yet, but a gentle breeze of awareness at the very least.

Though the GDPR does mention the fight
against doping in sport as a potential matter of public health in its recitals,[2]
EU authorities have not gone so far as to create a standalone ground on which
anti-doping organisations could rely to legitimise their data processing.
Whether or not anti-doping organisations have a basis to process personal data –
and specifically sensitive data – as part of their anti-doping activities, thus
remains dependent on the peculiarities of each national law. Even anti-doping
organisations that are incorporated outside the EU are affected to the extent
they process data about athletes in the EU.[3]
This includes international sports federations, many of which are organised as private
associations under Swiss law. Moreover, the Swiss
Data Protection Act (‘DPA’) is currently
under review, and the revised legal
framework should largely mirror the GDPR, subject to a few Swiss peculiarities.
All anti-doping organisations undertake at a minimum to abide by the WADA International
Standard for Privacy and the Protection of Personal Information (‘ISPPPI’),
which has been adapted with effect to 1 June 2018 and enshrines requirements
similar to those of the GDPR. However, the ISPPPI stops short of actually
referring to the GDPR and leaves discretion for anti-doping organisations to
adapt to other legislative environments.

The purpose of this blog is not to offer a
detailed analysis of the requirements that anti-doping organisations must abide
by under data protection laws, but to highlight how issues around data
processing have come to crystallise key challenges that anti-doping
organisations face globally. Some of these challenges have been on the table since
the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but
are now exposed in the unforgiving light of data protection requirements. More...

In the last five years, the Striani
case has been the main sword of Damocles hanging over UEFA’s Financial Fair
Play Regulations. At the very least, the only real judicial threat they have
faced (apart from the relatively harmless challenge mounted in the Galatasaray case at the CAS). Indeed, a Belgian
player agent, Daniele Striani, represented by Bosman’s former lawyer Jean-Louis
Dupont, attempted, in various fora, to challenge the compatibility of UEFA’s
CL&FFP Regulations with EU law. Striani lodged a complaint with the
European Commission (which was quickly rejected in October 2014) and initiated a private
action for damages before the Brussels Court of First Instance. The latter
deemed itself not competent to decide on the matter, but nevertheless accepted to
order a provisory stay of the enforcement of the UEFA FFP Regulations pending a
preliminary reference to the Court of Justice of the EU (see Ben van Rompuy’s
blog on the case here). The CJEU unsurprisingly rejected to enter into the matter, but UEFA and Striani
decided to appeal the first instance ruling to the Court of Appeal, which
rendered its decision on 11 April. It is unclear at this stage whether Striani
will attempt to challenge it at the Belgian Cour de Cassation (Highest Civil
Court), however this would entail considerable risks and costs and his lawyers
to date have not indicated that they would do so (see here).

While the ruling of the Court of
Appeal does not touch upon the much-discussed question of the compatibility of
UEFA’s FFP Regulations with EU law (see our many blogs on the question here, here and here), it remains an interesting decision to
discuss broader questions related to the procedural ease in challenging
regulatory decisions passed by sports governing bodies (SGBs) based in
Switzerland. Competition law constitutes the main legal tool available to
sports stakeholders looking to challenge existing regulatory arrangements from
the outside (e.g. not going through the internal political systems of the SGBs
or the CAS route). Recent cases, such as the ISU decision of the European Commission, the Pechstein case in front of the German courts or
the Rule 40 decision of the German competition
authority, have demonstrated the potency of competition law to question the
legality of the rules and decisions of the SGBs.[1]
In this regard, the decision of the Brussels Court of Appeal narrows the range
of parties allowed to challenge in European courts the SGBs’ rules and
decisions on the basis of competition law. More...

Editor's note: This report compiles all relevant news, events and
materials on International and European Sports Law based on the daily coverage
provided on our twitter feed @Sportslaw_asser. You
are invited to complete this survey via the comments section below, feel free
to add links to important cases, documents and articles we might have
overlooked.

The Headlines

The Court of Arbitration for Sport bans 12 Russian
track and field athletes

On 1 February 2019,
the Court of Arbitration for Sport (CAS) communicated that it had rendered another 12 decisions in the
seemingly endless saga concerning the state-sponsored doping programme in
Russia. These first-instance decisions of the CAS involve 12 Russian track and
field athletes who were all found guilty of anti-doping rule violations based on
the evidence underlying the reports published by professor Richard McLaren and
suspended from participating in sports competitions for periods ranging from
two to eight years. Arguably the most prominent name that appears on the list
of banned athletes is Ivan Ukhov, the 32-year-old high jump champion from the
2012 Olympic Games in London.

The case was
brought by the International Association of Athletics Federation (IAAF) that
sought to convince the arbitrators that the athletes in question had
participated in and/or benefited from anabolic steroid doping programmes and
benefited from specific protective methods (washout schedules) in the period
between the 2012 Olympic Games in London and the 2013 IAAF World Championships
in Moscow. The CAS was acting in lieau of the Russian Athletics Federation that
remains suspended and thus unable to conduct any disciplinary procedures. The
athletes have had the opportunity to appeal the decisions to the CAS Appeals
Arbitration Division.

At the end of
February, the German competition authority Bundeskartellamt announced that it had entered into a commitment agreement with
the German Olympic Sports Confederation (DOSB) and the International Olympic
Committee (IOC) in which these two organisations had agreed to considerably
enhance advertising opportunities for German athletes and their sponsors during
the Olympic Games. The respective agreement is a direct consequence of the
Bundeskartellamt’s finding that the IOC and the DOSB had abused their dominant
position on the market for organising and marketing the Olympic Games by
demanding that the athletes refrain from promoting their own sponsors while the
Games are ongoing, as well as shortly before and after the Games. This
restriction stems from Rule 40(3) of the Olympic Charter under which no
competitor who participates in the Games may allow his person, name, picture or
sports performances to be used for advertising purposes, unless the IOC
Executive Board allows him/her to do so.

As part of
fulfilling its obligations under the commitment agreement, the DOSB has relaxed
its guidelines on promotional activities of German athletes during the Olympic
Games. For its part, the IOC has declared that these new guidelines would take
precedence over Rule 40(3) of the Olympic Charter. However, it still remains to
be seen whether in response to the conclusions of the German competition
authority the IOC will finally change the contentious rule.

The Grand Chamber of the European Court of Human Rights
refuses to pronounce itself on Claudia Pechstein’s case

Claudia Pechstein’s
challenge against the CAS brought before the European Court of Human Rights
(ECtHR) has not yielded the desired result for the German athlete. On 5
February 2019, a Panel of the Grand Chamber of the ECtHR decided that the Grand Chamber would not entertain the case. This
means that the judgment handed down by the 3rd Chamber of the ECtHR
on 2 October 2018, in which the ECtHR confirmed that except for the lack of
publicity of oral hearings the procedures of the CAS are compatible with the
right to a fair trial under Article 6(1) of the European Convention on Human
Rights, has now become final and binding. However, the protracted legal battle
between the five-time Olympic champion in speed skating and the CAS is not over
yet since there is one more challenge against the CAS and its independence
pending before the German Constitutional Court. More...

In the past few years, FIFA underwent intense public
scrutiny for human rights violations surrounding the organisation of the
World Cup 2018 in Russia and 2022 in Qatar. This led to a
reform process at FIFA, which involved a number of policy changes, such
as:

Embracing the United Nations Guiding Principles on Business and Human Rights;

The inclusion of human rights in the FIFA Statutes;

Adopting new bidding rules including human rights requirements;

And introducing a Human Rights Advisory Board.

To take stock of these changes, the Asser Institute and the
Netherlands Network for Human Rights Research (NNHRR), are organising a
conference on the Fédération Internationale de Football Association
(FIFA) and human rights, which will take place at the Asser Institute in
The Hague on 8 May 2019.

This one-day conference aims to take a deeper look at FIFA’s
impacts on human rights and critically investigate the measures it has
adopted to deal with them. Finally, we will also address FIFA’s
potential legal responsibilities under a variety of human rights
laws/instruments.

Daniel
Rietiker (ECtHR and University of Lausanne) - The European Court of
Human Rights and Football: Current Issues and Potential

Jan Lukomski
(Łukomski Niklewicz law firm) - FIFA and the International Covenant on
Economic, Social and Cultural Rights : Obligations, duties and remedies
regarding the labour rights protected under the ICESCR

Raquel
Regueiro Dubra (Complutense University of Madrid) - Shared international
responsibility for human rights violations in global events. The case
of the 2022 World Cup in Qatar.

Wojciech
Lewandowski (Polish Academy of Sciences/University of Warsaw) - Is Bauer
the new Bosman? – The implications of the newest CJEU jurisprudence for
FIFA and other sport governing bodies

Editor's note: This report compiles all relevant news, events and
materials on International and European Sports Law based on the daily coverage
provided on our twitter feed @Sportslaw_asser. You
are invited to complete this survey via the comments section below, feel free
to add links to important cases, documents and articles we might have
overlooked.

The Headlines

#Save(d)Hakeem

The plight of
Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last
November in Bangkok upon his arrival from Australia on the basis of a red
notice issued by Interpol in contravention of its own policies which afford
protection to refugees and asylum-seekers – continued throughout the month of
January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a
(well-founded) fear of persecution stemming from his previous experience when
he was imprisoned and tortured as part of the crackdown on pro-democracy
athletes who had protested against the royal family during the Arab spring –
maintained a firm stance, demanding that Hakeem be extradited to serve a prison
sentence over a conviction for vandalism charges, which was allegedly based on
coerced confessions and ignored evidence.

While international
sports governing bodies were critised from the very beginning for not using
enough leverage with the governments of Bahrain and Thailand to ensure that
Hakeem’s human rights are protected, they have gradually added their voice to
the intense campaign for Hakeem’s release led by civil society groups. FIFA,
for example, has sent a letter directly to the Prime Minister of Thailand, urging
the Thai authorities ‘to take the
necessary steps to ensure that Mr al-Araibi is allowed to return safely to
Australia at the earliest possible moment, in accordance with the relevant
international standards’. Yet many activists have found this action
insufficient and called for sporting sanctions to be imposed on the national
football associations of Bahrain and Thailand.

Russia avoids further sanctions from WADA despite
missing the deadline for handing over doping data from the Moscow laboratory

WADA has been back
in turmoil ever since the new year began as the Russian authorities failed to
provide it with access to crucial doping data from the former Moscow laboratory
within the required deadline
which expired on 31 December 2018, insisting that the equipment WADA intended to use
for the data extraction was not certified under Russian law. The Russian
Anti-Doping Agency thus failed to meet one of the two conditions under which
its three-year suspension was controversially
lifted in September 2018.
The missed deadline sparked outrage among many athletes and national
anti-doping organisations, who blamed WADA for not applying enough muscle
against the Russian authorities.

Following the
expiry of the respective deadline, it appeared that further sanctions could be
imposed on the Russian Anti-Doping Agency, but such an option was on the table
only until WADA finally managed to access the Moscow laboratory and retrieve the
doping data on 17
January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the
progress as a major breakthrough for clean sport and members of the WADA
Executive Committee agreed that no further
sanctions were needed
despite the missed deadline. However, doubts remain as to whether the data have
not been manipulated. Before WADA delivers on its promise and builds strong
cases against the athletes who doped – to be handled by international sports
federations – it first needs to do its homework and verify whether the
retrieved data are indeed genuine.

British track cyclist Jessica Varnish not an employee
according to UK employment tribunal

On 16 January 2019,
an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports
governing bodies in the United Kingdom, ruling that the female track cyclist
Jessica Varnish was neither an employee nor a worker of the national governing
body British Cycling and the funding agency UK Sport. The 28-year-old multiple
medal winner from the world and European championships takes part in
professional sport as an independent contractor but sought to establish before
the tribunal that she was in fact an employee of the two organisations. This
would enable her to sue either organisation for unfair dismissal as she was
dropped from the British cycling squad for the 2016 Olympic Games in Rio de
Janeiro and her funding agreement was not renewed, allegedly in response to her
critical remarks about some of the previous coaching decisions.

The tribunal
eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent –
rather she was personally performing a commitment to train in accordance with
the individual rider agreement in the hope of achieving success at
international competitions’. Despite the outcome of the dispute, Jessica
Varnish has insisted that her legal challenge contributed to a positive change
in the structure, policies and personnel of British Cycling and UK Sport, while
both organisations have communicated they had already taken action to
strengthen the duty of care and welfare provided to athletes.

The Editors of the International Sports Law Journal
(ISLJ) invite you to submit abstracts for the third ISLJ Annual Conference on
International Sports Law, which will take place on 24 and 25 October 2019 at
the Asser Institute in The Hague. The ISLJ, published by Springer and Asser
Press, is the leading academic publication in the field of international sports
law. The conference is a unique occasion to discuss the main legal issues
affecting international sports with renowned academic experts and practitioners.

We are delighted to announce the following confirmed
keynote speakers:

Beckie Scott (Chair of
the World Anti-Doping Agency (WADA) Athlete Committee, Olympic Champion, former
member of the WADA Executive Committee and the International
Olympic Committee (IOC)),

Ulrich Haas (Professor of Law at Univerzität Zürich, CAS arbitrator),
and

We welcome abstracts from academics and practitioners
on any question related to international sports law. We also welcome panel
proposals (including a minimum of three presenters) on a specific issue. For
this year’s edition, we specifically invite submissions on the following themes:

The role of athletes in the governance of international sports

The evolution of sports arbitration, including the Court of Arbitration
for Sport

The role and functioning of the FIFA transfer system, including the FIFA
TMS

The intersection between criminal law and international sports (in
particular issues of corruption, match-fixing, human trafficking, tax evasion)

Hooliganism

Protection of minor athletes

Civil and criminal liability relating to injuries in sports

Please send your abstract of 300 words and CV no later
than 30 April 2019 to a.duval@asser.nl. Selected speakers will be informed by 15 May.

The selected participants will be expected to submit a
draft paper by 1 September 2019. All papers presented at the conference are
eligible (subjected to peer-review) for publication in a special issue of the
ISLJ. To be considered for inclusion in the conference issue of the
journal, the final draft must be submitted for review by 15 December
2019. Submissions after this date will be considered for publication in
later editions of the Journal.

The Asser Institute will cover one night accommodation
for the speakers and will provide a limited amount of travel grants (max. 250€).
If you wish to be considered for a grant please indicate it in your
submission.

Editor's note: Daniela Heerdt is a PhD candidate at Tilburg
Law School in the Netherlands and works as Research Officer for the Centre for Sports and
Human Rights. Her PhD research deals with the
establishment of responsibility and accountability for adverse human rights
impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic
Games. She published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting
regulations by FIFA, the IOC and UEFA strengthen access to remedy for
mega-sporting events-related human rights violations.

On November
26th, the Human Rights Advisory Board[1]
of the Fédération Internationale de Football Association (FIFA) published its second report. This blog provides a summary and brief
evaluation of the report, by drawing a comparison to the previous report issued by the Human Rights Advisory
Board (hereinafter: the Board) based on the content of the recommendations and
FIFA’s efforts to implement the Board’s recommendations. The third part of this
blog briefly reflects on the broader implications of some of the new
recommendations issued for FIFA’s internal policies. The conclusion provides
five more general points of observation on the report. More...

Upcoming Events

The ASSER International Sports Law Blog

This blog is a knowledge hub for all things related with International Sports Law. On this page, you will find the recent developments in the field: publications, events and cases. Moreover, we will provide outstanding (short) academic commentaries on the most pressing questions in International Sports Law.